IELR Blog

At the Brookings Institution this morning, International Monetary Fund (IMF) Managing Director Christine Lagarde delivered the opening remarks for a seminar on global transparency and anti-corruption initiatives.

Lagarde began her speech by outlining the IMF’s and other international organizations’ definition of public corruption as the “abuse of public office for private gain.” She noted, however, that corruption is a complex phenomenon involving several dimensions and multiple actors, such as “transnational private actors who influence public officials.”

Lagarde said that tackling corruption requires a two-pronged approach that involves increasing transparency and accountability as well as enacting regulatory reform and bolsteri ng legal institutions.

Lagarde explained that the catalyst for the IMF’s new anti-corruption initiatives is “a growing consensus among our members that corruption is a macro-critical issue in many countries.”

Last month, the IMF released a policy paper evaluating its progress in responding to governance issues as well as outlining its future role in anti-corruption and good governance efforts. The review noted the IMF “has undertaken numerous initiatives on governance and corruption across its operations and made significant contributions to the body of research on corruption.” The review also identified several areas of improvement, which included improving methodology for measuring corruption and its economic impact, providing “more concrete and granular policy advice” to governments, and “ensuring evenhanded treatment of corruption issues across countries.”

On Wednesday, officials from the Department of Homeland Security announced that the Trump administration has imposed visa sanctions on four countries for refusing to take back citizens were convicted of crimes in the United States and ordered deported. In a press release, the DHS that Acting Secretary of Homeland Security Duke notified Secretary of State Rex Tillerson that the governments of Cambodia, Eritrea, Guniea, and Sierra Leone “have denied or unreasonably delayed accepting their nationals ordered removed from the United States.” In response, Tillerson ordered consulates in the four countries to implement visa sanctions on selected groups of visa applications until the countries comply.

Acting Secretary of Homeland Security Elaine Duke stated, “The United States itself routinely cooperates with foreign governments in documenting and accepting its citizens when asked, as do the majority of countries in the world. However, these countries have failed to do so, and that one way street ends with these sanctions.”

The four countries are apparently on an internal list of countries that the DHS has deemed “recalcitrant” with regards to cooperating with the U.S. on immigration enforcement. In addition to the four sanctioned countries, the list includes Burma, China, Cuba, Hong Kong, Iran, Laos, Morocco, South Sudan, and Vietnam.

It remains to be seen whether the visa sanctions will be effective in increasing cooperation from the affected countries.

On Wednesday, attorneys from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed a complaint against the Department of Homeland Security (DHS) on behalf of 11 travelers whose electronic devices had been searched without warrants by U.S. Customs and Border Patrol (CBP) and U.S. Immigration and Customs Enforcement (ICE). The case, Alasaad v. Duke, was filed in the U.S. District Court for the District of Massachusetts.

According to the complaint, the plaintiffs are ten U.S. citizens and one lawful permanent resident who “regularly travel outside the country with their electronic devices, and intend to continue doing so.” Among the plaintiffs are a NASA engineer, an international security and journalism graduate student, and an independent filmmaker. Several of them are Muslim or people of color.

All of the plaintiffs have been at one time subject to search and seizure of their devices by border agents, based on the suspicion that the devices contained “contraband or evidence of a violation of immigration or customs laws.” In addition, four of the plaintiffs had their devices confiscated and seized for period of weeks or months.

The lawsuit alleges that the searches and seizures constituted violations of the Fourth and First Amendments.

The “Border Search Exception”

We do not have the same rights at the border that we have elsewhere in the United States. In the United States, the Fourth Amendment usually prohibits the government from conducting “unreasonable searches and seizures.” “A search or seizure is generally considered “unreasonable” if it is conducted without a warrant or probable cause. Several decades ago, however, the Supreme Court recognized a “border search exception,” permitting government officials at the border to bypass the warrant requirement. According to the EFF, the exception was intendent “only for the narrow purposes of enforcing immigration and customs laws, including ensuring that duties are paid on imported goods and that harmful people (e.g., terrorists) and harmful goods such as weapons, drugs, and infested agricultural products do not enter the country.”

So if border agents can search someone’s physical luggage without first obtaining a warrant, why are the ACLU and EFF arguing that the electronic devices should be exempt from the border search exception?

What’s So Special about Electronic Devices?

The plaintiffs’ argument for the unconstitutionality of the searches in question rests on what it considers the unique nature of electronic devices. In the preliminary statement of the complaint, the plaintiffs’ counsel states that “[t]oday’s electronic devices contain troves of data and personal information that can be used to assemble detailed, comprehensive pictures of their owners’ lives.” In essence, the sheer scope of personal information contained on our smartphones and personal computers — from location data, to financial information, to private communications – renders the search of these devices uniquely intrusive.

Indeed, as the complaint notes, the Supreme Court has previously acknowledged that electronic mobile devices implicate unique privacy interests. In Riley v. California (2014), the Court rejected the government’s assertion that a search of the data stored on a cell phone is “materially indistinguishable” from the search of physical items on the basis that “modern cellphones… hold for many Americans the “intricacies of private life.”

The defendants thus violate the Fourth and First Amendments, the plaintiffs’ counsel argues, not only by seizing and searching the devices without probable cause, but also by failing to specify or describe the particular documents to be searched. When someone searches a piece of physical luggage, the search is limited to the contents of that particular storage container. When someone searches the contents of a smartphone, however, they access a vast trove of personal information, much of which is not even stored on the physical device, but on remote servers. The sheer scope as well the personally-identifiable nature of the data on an electronic device render searches of electronic storage devices more invasive than those of physical storage devices.

Watch this case – new and emerging technologies, such as smartphones, infrared sensors, and GPS –have raised questions regarding the proper scope and application of the Fourth Amendment (and, to a lesser extent, the First). Is the search of the contents of a personal computer analogous to the search of the contents of a house? Or does the vast quantity, as well as the uniquely personal quality, of information stored on electronic devices require more robust Fourth Amendment protections?

On Monday evening, the U.N. Security Council unanimously adopted Resolution 2375, which imposes a new set of economic sanctions on North Korea.

The new sanctions target the country’s gas and textiles industries by banning the sale of natural gas liquids to North Korea as well as limiting textile exports. The new sanctions also prohibit Member States from providing work authorization to North Korean nationals.

The council also decided to extend several existing sanctions, including a travel ban and assets freeze on three North Korean entities.

A Security Council press release reported that the new sanctions – the harshest imposed on North Korea thus far – were in response to the “serious and escalating nature of the threats posed by Pyongyang’s nuclear weapons programme.” U.S. ambassador to the United Nations Nikki Haley stated that the North Korean regime had not yet passed the point of no return, and emphasized that “the choice is theirs” with regards to their escalating nuclear program.

The new sanctions are not as harsh as those the Trump administration had originally called for immediately following news of North Korea’s sixth and most powerful nuclear test – reportedly of a hydrogen bomb — last week. At an emergency Security Council session last Monday, Ms. Haley had pushed for a full oil embargo on North Korea as well as a total assets freeze and global travel ban on Kim Jong-un, cautioning that the North Korean leader “is begging for war.” These initial proposals failed to garner support with Russia and China, however, and the later drafts of the resolution proposed less far-reaching measures.

American officials now estimate that the new sanctions, by imposing a cap of 2 million barrels of refined petroleum for the year, will decrease North Korea’s oil imports by 30 percent.

The Debate over Sanctions

Resolution 2375 is the ninth sanctions resolution adopted by the UN against North Korea. While previous sanctions have certainly squeezed the country’s economy, they have done little to curb its nuclear weapons development program.

Foreign policy scholars and practitioners have several theories as to why sanctions have not worked in the latter regard. One theory implicates low implementation rates of the adopted sanctions regimes by certain UN Member States. A 2016 UN report revealed that non-compliance was a problem not only among countries that have traditionally balked at harsher sanctions against North Korea, such as Russia and China, but among others as well. According to the report, 90 member states had completely failed to submit required national implementation reports for any of the North Korea-related sanctions resolutions up to that point. Another theory argues that North Korea is largely immune to economic and financial sanctions, because of the unusually far-reaching sacrifices the leadership is willing to make with regards to the lives and well-being of its citizens. Adam Taylor of the Washington Post recently offered a breakdown of these two theories, concluding that they are not mutually exclusive, and likely both partially explain why sanctions thus far have failed to weaken the North Korean regime as well as curtail the country nuclear weapons development program.

Following the announcement of the new sanctions regime, North Korea’s ambassador the UN stated at a UN conference in Geneva that “[t]he forthcoming measures by DPRK [the Democratic Republic of Korea] will make the US suffer the greatest pain it has ever experienced in its history.”

 

DC Fellow Bill Coffield of Washington, DC, based Berliner, Corcoran & Rowe, won a defense verdict for Government Logistics, NV, a Belgian corporation, in the US District Court for the Eastern District of Virginia. The case, United States of America, ex rel. Kurt Bunk v. Government Logisitics, NV, No. 1:02-cv-1168 (AJT/MSN), was tried in May of 2017 before US District Judge Anthony Trenga.  The Court’s opinion, issued on August 22, 2017, held Government Logistics not liable as a successor in interest for a $24 million False Claims Act judgment against another Belgian company.

The United States Government had originally sought to hold Government Logistics liable as an alleged successor entity for over $125 million dollars of False Claims Act penalties and damages against Gosselin Group, NV. In rejecting the Government’s allegations that Government Logistics had entered into a fraudulent transaction intended to hinder potential judgment creditors, the Court, in its Memorandum Opinion stated, “The GovLog principals were not aware of any potential civil liability that the Gosselin Defendants faced when they entered into the Gosselin-GovLog transactions and by entering into those transactions, did not intend to assist the Gosselin Defendants in any effort to hinder, delay, or defraud creditors in general or the United States in particular.”

Bill led the defense team from Berliner, Corcoran & Rowe, that included partner Laina Lopez. In addition to being an LCA Fellow, Bill is AV Peer Rated by Martindale Hubbell, is ranked a Super Lawyer by Thompson Reuters, and has been named a Top One Hundred Trial Lawyer by the National Trial Lawyers Association.  His areas of practice and expertise include white collar and complex civil litigation. He has advised corporations, ranging from billion-dollar international public companies to private businesses, and public-sector officials, including The White House and The United States Congress.

Last week, a United Nations commission released its much-awaited final report on its investigation of the alleged use of chemical weapons in Syria. The 85-page report concluded based on evidence gathered between April and November 2013 that “chemical weapons have been used in the ongoing conflict between the parties in the Syrian Arab Republic, not only in the Ghouta area of Damascus on 21 August 2013, but also on a smaller scale in Jobar on 24 August 2013, Saraqueb on 29 April 2013, Ashrafiah Sahnaya on 25 August 2013 and Khan Al Asal on 19 March 2013.” To arrive at its findings, the UN mission triangulated several sources of evidence, ranging from laboratory results from environmental and biomedical samples to interviews with victims and witnesses as well as Syrian government officials.

The report explicitly accuses the Syrian government of using chemical weapons, in particular a sarin nerve gas agent, in 16 separate incidents. Several of the incidents, such as one alleged by the UK and Qatar governments to have taken place in the Damascus suburb of Darayya on March 13, 2013, targeted unarmed civilians.

On September 8, Syria’s state news agent SANA reported that the Syrian government had denied the UN commission’s accusations. Damascus sent the UN a letter stating that “Syria has not and will not use toxic gases against its people because it does not have them in the first place.”

Berliner, Corcoran & Rowe has released a regulatory alert regarding the recent sanctions imposed on Venezuela by the Trump Administration.

The Premium Newsletter No. 4 for IELR Volume 33, Issue 8 is here! Read about the 1MDB civil forfeiture case, OFAC’s targeting of a major Mexican drug kingpin, and more. Like our abstracts? For full access to the articles listed in the newsletter, subscribe to the IELR.